Kay v. Haupt , 63 Pa. Super. 16 ( 1916 )

Opinion by

Trexler, J.,

The defendant, while a minor without disclosing his minority, purchased a carload of lumber from the plaintiff. He attained his majority not ,'long after, and in writing disaffirmed the contract to pay on the ground of infancy. At that time some of the goods was still in his possession, but no proof as to the quantity was offered. The defendant became of age on December 23, 1908, and on December 17,1913, long after the goods were disposed of, the present action of replevin was started. The almost identical facts are present in the case of F. Spangler Co. v. Haupt (the same defendant), 53 Pa. Superior Ct. 545, as in this and it was held that the mere silence of an infant as to his age in making a contract does not constitute fraud which can be made the basis of an action for deceit and that if a wrong grows out of a contract relation and the real injury consists in the nonperformance of a contract into which the party wronged has entered with an infant, the law will not permit the former to enforce the contract indirectly by counting on the infant’s neglect to perform it or omission of duty under it as a tort.

The above conclusion is amply supported by the cases cited and the reasoning employed in the opinion of Rice, P. J. All that is required of us is to supplement what was then said in so far as the matter now is presented in a new aspect.

When a party relying upon false representations of a minor parts with his goods, he may disaffirm the contract and bring an action of replevin to recover possession of his property: Neff v. Landis, 110 Pa. 204, but as was said by Bice, P. J., in the opinion in the Spangler case, supra, “the right to replevy the goods so long as they remain in the possession or under the control of the infant does not necessarily imply a right to enforce the infant’s contract.” In the case before us it is very evident that this form of action was the last resort of the plaintiff. He had brought an action in assumpsit and that was still undetermined when the writ of replevin was issued. Five years had elapsed since the defendant became of age. Although he alleges in his statement that the goods are still in the hands and possession of the defendant, the testimony discloses that they had been sold in the usual course of business during the years 1908 and 1909 and as said before no attempt was made to show what amount remained in the hands of the defendant when he became twenty-one years of age. There was no property to be seized under the writ. It is true' that under the replevin act when the plaintiff does not get possession, he is entitled to the value of the goods and in this respect the nature of the a.ction is changed. But if we were to allow a recovery by the plaintiff, we would merely be affording a means to collect a debt by reason of a change in the form of action and this would render the defendant liable for that which he, under the law, could repudiate when he became of age. Any one contracting with a minor, instead of bringing an action in assumpsit against which nonage could be pleaded, could by merely changing this action to replevin obtain a judgment for his claim irrespective of the fact as to whether defendant was in possession of the goods or not. This would be accomplishing by indirection that which the plaintiff is prevented from doing directly.

A number of objections are made to the exclusion of testimony. They do not require extended notice. The statement filed by the plaintiff alleges fraud on the part of the defendant in obtaining the goods and specifically states that the transaction was fraudulent, “because soon after obtaining possession of the said lumber, he (the defendant) repudiated the contractual agreement under which he got possession.” Other matters sought to be introduced were properly objected to as not embraced within the plaintiff’s statement. Apart from the fact that there would have been a variance, we do not think there is any merit in the position taken by the plaintiff when he attempted to prove that the defendant had bought lumber from a large number of other people and had treated them in the same way as he had this plaintiff, for this proof would have added nothing to the plaintiff’s case as the defendant had equally the right to disaffirm the contract as to one or all of his creditors. The offer to prove fraud in that the plaintiff made statements showing large assets to several mercantile agencies is without merit, for upon objection the plaintiff declined to include in his offer, proof, that the statements were false. If they were true they were, not fraudulent.

The act of the defendant will not meet with the approval of any honest person but the wrong that was done, it appears, must remain without remedy. As was said in the Spangler case, “the hardships which may arise in particular cases must yield to the operation of' the general rule founded on public policy, intended to protect persons in fact under age from the danger of imprudent contracts: 2 Kent’s Com., p. 245.”

Judgment affirmed.